Citation Nr: 0609455
Decision Date: 03/31/06 Archive Date: 04/07/06
DOCKET NO. 96-22 442 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to an increased rating for residuals of a
head injury with headaches and memory loss, currently
evaluated as 10 percent disabling.
2. Entitlement to an increased rating for left ear hearing
loss, currently evaluated as noncompensable.
3. Entitlement to an increased rating for residuals, left
ankle fracture, currently evaluated as 20 percent disabling
effective July 26, 2000, and as noncompensable prior thereto.
4. Entitlement to an earlier effective date for the
assignment of a 20 percent rating for the veteran's service-
connected residuals, left ankle fracture.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant, his spouse, and his mother
ATTORNEY FOR THE BOARD
M. Carr, Associate Counsel
INTRODUCTION
The veteran had active service from April 1976 to July 1977.
This matter comes before the Board of Veteran's Appeals
(Board) on appeal from an October 1995 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Little Rock, Arkansas, in which the RO, inter alia, denied
the veteran's claims for increased ratings for the following
service-connected conditions: residuals of a head injury with
headaches and memory loss, hearing loss, and residuals, left
ankle fracture.
In October 2001 the RO increased the veteran's rating for his
service-connected residuals, left ankle fracture from
noncompensable to 20 percent disabling, effective July 26,
2000, the date the representative's request for additional
examination was received. The RO continued the 10 percent
rating for residuals of a head injury with headaches and
memory loss and noncompensable rating for hearing loss. The
veteran filed a notice of disagreement (NOD) to the effective
date of the increased rating for his ankle disability, the RO
issued a statement of the case (SOC) in July 2002 and the
veteran perfected his appeal regarding this issue in
September 2002. The claim regarding his left ankle
disability, however, is properly framed as entitlement to a
compensable rating from November 15, 1994, the date of the
claim for increase, and in excess of 20 percent from July 26,
2000.
In December 2003, the Board remanded the matter for
additional development. It is now again before the Board for
disposition.
The issue of entitlement to an increased rating for left ear
hearing loss is addressed in the REMAND portion of the
decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The veteran's service-connected residuals of a head
injury with headaches and memory loss is manifested by
subjective complaints of headaches; he has not been diagnosed
as having multi-infarct dementia.
2. For the period November 15, 1994 through July 25, 2000,
the veteran's service-connected left ankle disability was
manifested by a normal range of plantar flexion and 10
degrees of dorsiflexion.
3. For the period beginning July 26, 2000, the veteran's
service-connected left ankle disability is manifested by
complaints of pain throughout the range of motion for the
left ankle; it is not productive of incoordination or
weakness of the left ankle.
4. The veteran's claim for an increased rating was received
on November 15, 1994.
5. By an October 2001 rating decision, the RO increased the
veteran's service-connected left ankle disability from
noncompensable to 20 percent, effective July 26, 2000 (based
upon the date the veteran's representative requested an
additional examination).
6. There is no documentary evidence of increased left ankle
disability earlier than July 26, 2000.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 10 percent for the
veteran's service-connected residuals of a head injury with
headaches and memory loss have not been met. 38 U.S.C.A. §§
1155, 5107 (West 2002); 38 C.F.R. §§ 4.124a, 4.130,
Diagnostic Codes 8045, 9304 (2005).
2. For the period November 15, 1994 through July 25, 2000,
the criteria for a 10 percent rating, and no higher, for a
left ankle disability have been met. 38 U.S.C.A. §§ 1155,
5107 (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.71a; Part
4, Diagnostic Code 5271 (2005).
3. For the period beginning July 26, 2000, the criteria for
a rating in excess of 20 percent for a left ankle disability
have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38
C.F.R. §§ 3.321, 4.40, 4.45, 4.71a; Part 4, Diagnostic Code
5271 (2005).
4. An effective date prior to July 26, 2000, for a 20
percent rating for a left ankle disability is not warranted.
38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.400
(2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board has reviewed all the evidence in the two volumes
comprising the veteran's claims folder, which includes, but
is not limited to: the veteran's assertions; a lay statement;
VA treatment records, including multiple VA examination
reports; and, private medical records. Although the Board
has an obligation to provide reasons and bases supporting
this decision, there is no need to discuss, in detail, all
the evidence submitted by the appellant or on his behalf.
The Board will summarize the relevant evidence where
appropriate, and the Board's analysis below will focus
specifically on what the evidence shows, or fails to show, on
each claim.
I. Increased Ratings
Disability evaluations are based upon the average impairment
of earning capacity as contemplated by a schedule for rating
disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2005).
Where there is a question as to which of two disability
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7 (2005).
When rating the veteran's service-connected disability, the
entire medical history must be borne in mind. Schafrath v.
Derwinski, 1 Vet. App. 589 (1991). In cases where
entitlement to compensation has already been established and
an increase in the disability rating is at issue, it is the
present level of disability that is of primary concern. See
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Such is the
case here.
All potentially applicable diagnostic codes must be
considered when evaluating disability. However, care must be
taken not to evaluate the same manifestations of disability
under more than one applicable code. This would constitute
"pyramiding." See 38 C.F.R. § 4.14 (2005). Where,
however, separate and distinct manifestations have arisen
from the same injury, separate disability ratings may be
assigned where none of the symptomatology of the conditions
overlaps. See Esteban v. Brown, 6 Vet. App. 259 (1994).
When applying the rating schedule, it is not expected,
especially with the more fully described grades of
disabilities that all cases will show all the findings
specified. 38 C.F.R. § 4.21 (2005).
Under 38 C.F.R. § 4.20, when an unlisted condition is
encountered it will be permissible to rate under a closely
related disease or injury in which not only the functions
affected, but the anatomical localization and symptomatology
are closely analogous. Conjectural analogies will be
avoided, as will the use of analogous ratings for conditions
of doubtful diagnosis, or for those not fully supported by
clinical and laboratory findings. Nor will ratings assigned
to organic diseases and injuries be assigned by analogy to
conditions of functional origin.
Under 38 C.F.R. § 4.31, in every instance where the schedule
does not provide a zero percent evaluation for a diagnostic
code, a zero percent evaluation shall be assigned when the
requirements for a compensable evaluation are not met.
The words "slight," "moderate" and "severe" as used in the
various diagnostic codes are not defined in the VA Schedule
for Rating Disabilities. Rather than applying a mechanical
formula, the Board must evaluate all of the evidence, to the
end that its decisions are "equitable and just." 38 C.F.R. §
4.6 (2005). It should also be noted that use of terminology
such as "severe" by VA examiners and others, although an
element of evidence to be considered by the Board, is not
dispositive of an issue. All evidence must be evaluated in
arriving at a decision regarding an increased rating. 38
C.F.R. §§ 4.2, 4.6 (2005).
In evaluating musculoskeletal disabilities, the Board must
assess functional impairment and determine the extent to
which a service-connected disability adversely affects the
ability of the body to function under the ordinary conditions
of daily life, including employment. 38 C.F.R. § 4.10
(2005). Ratings based on limitation of motion do not subsume
the various rating factors in 38 C.F.R. §§ 4.40 and 4.45,
which include pain, more motion than normal, less motion than
normal, incoordination, weakness, and fatigability. These
regulations, and the prohibition against pyramiding in 38
C.F.R. § 4.14, do not forbid consideration of a higher rating
based on a greater limitation of motion due to pain on use,
including flare-ups. DeLuca v. Brown, 8 Vet. App. 202, 206-
08 (1995). In other words, when rated for limitation of
motion, a higher rating may be assigned if there is
additional limitation of motion from pain or limited motion
on repeated use of the joint. A finding of functional loss
due to pain must be "supported by adequate pathology and
evidenced by the visible behavior of the claimant." 38
C.F.R. § 4.40 (2005). A little used part of the
musculoskeletal system may be expected to show evidence of
disuse, either through atrophy, the condition of the skin,
absence of normal callosity or the like. Id.
As regards the joints, the factors of disability reside in
reductions of their normal excursion of movements in
different planes. Inquiry will be directed to these
considerations: (a) less movement than normal (due to
ankylosis, limitation or blocking, adhesions, tendon-tie-up,
contracted scars, etc.); (b) more movement than normal (from
flail joint, resections, nonunion of fracture, relaxation of
ligaments, etc.); (c) weakened movement (due to muscle
injury, disease or injury of peripheral nerves, divided or
lengthened tendons, etc.); (d) excess fatigability;
(e) incoordination, impaired ability to execute skilled
movements smoothly; and (f) pain on movement, swelling,
deformity or atrophy of disuse. Instability of station,
disturbance of locomotion, interference with sitting,
standing and weight-bearing are related considerations. For
the purpose of rating disability from arthritis, the shoulder
and elbow are considered major joints. 38 C.F.R. § 4.45
(2005).
The normal range of ankle dorsiflexion is 0 degrees to 20
degrees. The normal range of ankle plantar flexion is 0
degrees to 45 degrees. See 38 C.F.R. § 4.71, Plate II
(2005).
A. Head Injury
The veteran currently has a 10 percent disability rating for
residuals of a head injury with headaches and memory loss
under DC's 8045-9304.
DC 8045, which pertains to brain disease due to trauma,
states that purely subjective complaints such as headaches,
dizziness and insomnia, recognized as symptomatic of brain
trauma, will be rated as 10 percent disabling and no more
under DC 9304. This 10 percent rating will not be combined
with any other rating for a disability due to brain trauma.
Ratings in excess of 10 percent for brain disease due to
trauma under DC 9304 are not assignable in the absence of a
diagnosis of multi-infarct dementia associated with brain
trauma. 38 C.F.R. § 4.124(a), DC 8045 (2005).
The relevant medical evidence includes an April 1995 VA
epilepsy and narcolepsy examination report which stated that
epilepsy was not found. An April 1995 VA examination report
regarding diseases/injuries of the brain listed a diagnosis
of history of subdural hematoma with subjective complaints of
headache and memory deficit. A June 1995 VA psychological
report stated that the veteran reported memory problems,
headaches (everyday), blurry vision in the left eye,
psychological symptoms suggestive of post-traumatic stress
disorder (PTSD), and confusion and difficulty concentrating.
The diagnoses were probable PTSD secondary to a 1991 beating
and moderate cognitive disorder, not otherwise specified.
An August 2000 VA report of skull X-rays stated that there
had been an osteotomy with a large bone flap in the left
parietal area. Otherwise, the skull was stated to be
satisfactory. An August 2000 VA neurological disorders
examination report noted hospitalization in February 1999
with a diagnosis of episodic amnesia, possible fugue state.
It was stated that a sleep deprived EEG was normal, as was a
CT scan of the head. It was also stated that the neurologist
felt that it was probably not a seizure disorder. Upon
physical examination, cranial nerves II-XII seemed to be
intact with no focal abnormalities. Movement was well
coordinated in the right and left side of the upper and lower
extremities and rapid repetitive motion was well performed in
the upper and lower extremities. Reflexes were 2+ and equal
bilaterally and there were no pathological reflexes. Sensory
system seemed to be intact. The diagnoses were head injury
in 1976 with coma; head injury in 1991, surgery for left
subdural hematoma; seizure disorder, probable onset in 1991,
last "major" seizure in 1998, on treatment; and, multiple
symptoms, i.e., impaired memory, adjustment problems,
headaches, nightmares, slurring, etc. It is emphasized that
the report stated that the VA Medical Center Shreveport
medical record was available, but only volume II of II;
volume I was not available for review.
A July 2001 VA mental disorders examination report listed
diagnoses of cognitive disorder, not otherwise specified,
secondary to two prior closed head injuries; PTSD, resolving;
and, personality change due to prior head injuries, labile
type.
An August 2001 VA neurology progress note stated that cranial
nerves II-XII were intact. The veteran reported decreased
pinprick in the right distal lower extremity, inconsistent.
It was intact to other modalities. Deep tendon reflexes were
+2 to +3, asymmetric, plantar flexors. The impression was
history suggestive of partial seizure disorder with
intermittent secondary generalization pending confirmation
with witnesses. Possible etiologies were stated to be post-
traumatic, idiopathic, or possibly alcohol related. It was
stated that an EEG was performed, which showed slightly
decreased amplitude and bifrontal slowing, left greater than
right. There were no epileptiform discharges. However, it
was noted that a negative EEG did not exclude seizure.
An August 2001 VA report of an MRI of the brain listed an
impression of minimal superficial cortical asymmetry and some
dural thickening overlying the area of previous craniotomy at
the left parietal region consistent with a history of
subdural evacuation. There was no indication of a local
acute focal lesion.
A March 19, 2004 VA progress note stated that the veteran
called stating that he had a grand mal seizure three days
prior. A March 24, 2004 VA progress note stated that the
veteran reported having had a seizure on March, 15, 2004,
witnessed by two family members who are registered nurses,
per the veteran. The impression was seizure episode.
A May 2004 VA neurology consult stated that the veteran's
chief complaint was uncontrolled seizures. In this regard,
he reported having had two seizures in February 2004. Upon
examination, speech was clear without dysarthria or aphasia.
Facies were symmetric and visual fields were full by
confrontation. Fundus examination revealed sharp disc in the
right eyeground. Sensation on the face was normal to light
touch. Normal movements of muscles of facial expression and
muscles of mastication were noted. Deep tendon reflexes were
2+ throughout and sensation was intact to vibration distally
in all four extremities. The impression was post-traumatic
seizure disorder. It was stated that it the veteran was
likely to need anticonvulsant protection for the rest of his
life. It was also stated that the possibility of alcohol
withdrawal seizures could not be excluded.
A June 2004 VA joints examination report listed a diagnosis
of closed head injury. It was stated that the residuals of
his head injury included post-traumatic headache, mild memory
loss, decreased concentration, nervousness, and anxiety. The
1991 head injury was also noted (and emphasized as being non-
service related). It was stated that the primary residuals
from this injury were post-traumatic headaches and post-
traumatic seizure disorder. It was also stated that the
seizure disorder etiologies were post-traumatic head injuries
and alcohol withdrawal.
A July 2004 VA report of a CT scan of the brain listed an
impression of status post left parietal craniotomy. There
were mild generalized atrophic changes in the brain
parenchyma. The etiology of the atrophic changes was stated
to be undetermined.
A VA report of mental disorders examinations conducted on
July 27, 2004 and October 8, 2004 stated that the claims
folder, computerized notes, and collateral statements (if
any) were reviewed as part of the examinations. This is
evident from a review of the report. Upon mental status
examination on July 27, 2004, long-term memory was fair and
short-term memory was good. Attention and concentration were
fair. Upon mental status examination on October 8, 2004,
attention and concentration were good. Several
inconsistencies are noted in the report, including the
veteran's reports of being in a coma following his in-service
head injury, his reports of having a three day loss of
consciousness following his 1991 beating, and his employment
and alcohol use history. It was remarked that many of the
veteran's prior examiners did not have access to the
veteran's claims folder and military records. The Axis I
diagnoses were alcohol dependence (supported by the July 2004
and October 2004 examinations) (principal diagnosis);
cognitive disorder, not otherwise specified, mild (by current
evidence, of unknown etiology, and possible multiple
etiologies) (provisional, with some support for this
condition as well as some support against this condition)
(evidence does not support connection to military);
psychological factors affecting medical condition; and
nicotine dependence. It was stated that the evidence did not
support the connection of the personality problems to the
accident in the military in 1976, or to military service.
Additionally, it was stated that the evidence did not support
a connection between PTSD symptoms and the in-service motor
vehicle accident.
Based on the foregoing, the Board finds that the
preponderance of the evidence is against the veteran's claim.
There has been no diagnosis of multi-infarct dementia
associated with head trauma in service. Accordingly, the
veteran's current 10 percent rating is the maximum evaluation
allowed under Code 8045 for headaches and memory loss
recognized as symptomatic of brain trauma. Absent a
diagnosis of multi-infarct dementia associated with brain
trauma, a rating in excess of 10 percent is not warranted.
The Board notes that DC 8045 states that purely neurological
disabilities, such as hemiplegia, epileptiform seizures,
facial nerve paralysis, etc., following trauma to the brain,
will be rated under the diagnostic codes specifically dealing
with such disabilities, with citation of a hyphenated
diagnostic code (e.g., 8045-8207). Such is not appropriate
in the instant matter. While the Board acknowledges the
veteran's multiple complaints of seizures and even the
impressions of seizure disorder in the claims folder, it is
stressed that none of the alleged seizures has been
witnessed. In this regard, it is noted that the March 24,
2004 VA progress note that stated the veteran reported having
had a seizure on March, 15, 2004, noted that the veteran
reported it being witnessed by two family members who were
registered nurses. However, it was made clear that such
report was merely per the veteran. In addition, the most
recent evidence of record, the report of the VA examinations
conducted on July 27, 2004 and October 8, 2004, did not list
a diagnosis of seizure disorder. Furthermore, there is no
objective evidence of neurological disabilities such as
hemiplegia, epileptiform seizures, facial nerve paralysis,
etc.
As such, the preponderance of the evidence is against an
increase in the current 10 percent rating for residuals of a
head injury with headaches and memory loss. Thus, the
benefit-of-the-doubt rule does not apply, and the claim must
be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
B. Left Ankle
The veteran's service-connected left ankle disability is
rated as 20 percent disabling effective July 26, 2000, and as
noncompensable prior thereto under DC 5271, which provides
that a 10 percent rating is warranted where there is moderate
limited motion of the ankle and that a 20 percent rating is
warranted where there is marked limited motion of the ankle.
The relevant evidence includes an April 1995 VA joints
examination report, which stated that the veteran's ankles
were symmetric. There was no swelling, deformity, or
instability. Range of motion bilaterally was 45 degrees of
plantar flexion and 10 degrees of dorsiflexion. The
diagnosis was old healed fracture of the left ankle in 1976
by history only. It was stated to be normal upon
examination.
A statement from the veteran's representative, dated July 26,
2000, requested that the veteran be afforded VA examination.
An August 2000 VA bones examination report stated that
examination of the left leg revealed no deformity suggesting
previous fracture. Examination of the left ankle revealed
subjective tenderness in the medial and lateral malleoli
bilaterally. There was no particular effusion or swelling.
It was stated that the veteran did limp on the left side and
walked with a cane.
A July 2001 VA joints examination report stated that, upon
physical examination, the veteran's left ankle looked normal.
He had some pain across the small bones of the metatarsal
joint, just inferior to the malleoli bilaterally. Strength
testing was 5/5 against dorsiflexion, plantar flexion, and
resistance. Left ankle plantar flexion was 43 degrees and
dorsiflexion was 0 degrees. He had decreased sensation to
softness and temperature along the upper dorsum of the foot
under the toes on the left side, but he had increased
sensation to pinprick and vibration. He had slight edema
across the foot and ankle. Pulses were good and hair growth
was good. It was stated that the veteran could walk on toes
and heels with minimal difficulty and could squat.
A June 2004 VA joints examination report noted that the two
volumes of the veteran's claims folder, VA hard copy, and
electronic file were reviewed in conjunction with the
examination. Upon physical examination, the veteran's
posture was erect and his gait was normal and brisk. It was
stated that the veteran did not require an ambulatory aid and
that none was indicated. The left ankle did not have any
significant tendonitis on the medial or lateral malleoli and
there was no effusion, erythema, or warmth. It was stated
that the veteran was required to do dorsiflexion and plantar
flexion of the left ankle three times and that his additional
limitation following this repetition of activity was pain.
Range of motion, both actively and passively, was 0 degrees
to 22 degrees of dorsiflexion, 0 degrees to 31 degrees of
plantar flexion, 0 degrees to 18 degrees of inversion, and 12
degrees of eversion. The veteran complained of pain
throughout the range of motion for the left ankle. There did
not appear to be any instability and he was able to ambulate
normally on his tip toes and heels using the left ankle as
well as the right ankle. The examiner stated that the
veteran did complain of significant pain in the left ankle,
but that he did not have any incoordination. She also stated
that there was no weakness. The primary limiting factor
after repetition of his activities was pain and not
fatigability.
Based on the foregoing, the Board finds that a 10 percent
rating is warranted for the veteran's service-connected left
ankle disability for the period November 15, 1994 through
July 25, 2000. The April 1995 VA joints examination report
stated that the veteran had 10 degrees of dorsiflexion.
Again, the normal range of ankle dorsiflexion is 0 degrees to
20 degrees. Accordingly, the Board finds that the veteran's
left ankle disability was manifested by moderate limitation
of motion for the period November 15, 1994 through July 25,
2000. This conclusion would also be consistent with the
provisions of 38 C.F.R. § 4.59 noting that it was the
intention of the rating schedule to provide the minimal
compensable rating for joint injury residuals that are
actually painful or unstable.
The Board acknowledges the veteran's complaints of left ankle
pain, as VA is required to take pain symptoms into account to
the extent these symptoms are supported by adequate
pathology, in ratings involving limitation of range of
motion. 38 C.F.R. §§ 4.40 and 4.45; see also DeLuca v.
Brown, 8 Vet. App. 202, 204-206 (1995); VAGCOPPREC 9-98, 63
Fed. Reg. 56704 (1998). Here, the diagnosis in the April
1995 VA joints examination report was old healed fracture of
the left ankle in 1976 by history only; the left ankle was
stated to be normal upon examination and he had a full range
of motion on plantar flexion. The Board finds that, given
the foregoing, a rating in excess of 10 percent for the
veteran's left ankle disability is not warranted for the
period November 15, 1994 through July 25, 2000, even with
consideration of 38 C.F.R. §§ 4.40 and 4.45.
The Board finds that the preponderance of the evidence is
against the veteran's claim for a rating in excess of 20
percent for the period beginning July 26, 2000. In this
regard, the Board notes that 20 percent is the maximum
schedular rating under DC 5271.
The Board again acknowledges the veteran's subjective
complaints of left ankle pain, as VA is required to take pain
symptoms into account to the extent these symptoms are
supported by adequate pathology, in ratings involving
limitation of range of motion. 38 C.F.R. §§ 4.40 and 4.45;
see also DeLuca v. Brown, 8 Vet. App. 202, 204-206 (1995);
VAGCOPPREC 9-98, 63 Fed. Reg. 56704 (1998). However, if a
claimant is already receiving the maximum disability rating
available based on symptomatology that includes limitation of
motion, it is not necessary to consider whether 38 C.F.R. §§
4.40 and 4.45 are applicable. Johnston v. Brown, 10 Vet.
App. 80 (1997). As is explained above, such is the case
here. Accordingly, a rating in excess of 20 percent for the
period beginning July 26, 2000 under DC 5270 is denied. The
evidence is not so evenly balanced as to raise doubt
concerning any material issue. 38 U.S.C.A. § 5107(b).
Additionally, a higher rating for the left foot is not
available under any other diagnostic code. See Schafrath v.
Derwinski, 1 Vet. App. 589 (1991). For example, there is no
evidence of ankylosis of the left ankle. Therefore, a rating
under DC 5270 would be inappropriate.
Also considered by the Board were the provisions of 38 C.F.R.
§ 3.321(b)(1), which state that when the disability picture
is so exceptional or unusual that the normal provisions of
the rating schedule would not adequately compensate the
veteran for his service-connected disabilities, an
extraschedular evaluation will be assigned. To this end, the
Board notes that neither frequent hospitalization nor marked
interference with employment due to the veteran's service-
connected left ankle disability is demonstrated, nor is there
any other evidence that this condition involves such
disability that an extraschedular rating would be warranted
under the provisions of 38 C.F.R. § 3.321(b)(1). In this
case, the veteran has not required hospitalization for his
service-connected left ankle condition at any time during the
appeal period. Furthermore, there is no medical evidence to
suggest that such disability markedly interferes with his
employment. With regard to employment, the Board notes that
a review of the record reveals that the veteran has not
worked in many years. Accordingly, consideration of whether
the veteran's service-connected left ankle condition results
in marked interference with employment, for example, results
in frequent absences from work or impairs the veteran's
ability to perform his or her assigned tasks at work, is
inapplicable in the instant matter. The Board, therefore,
finds no basis for further action on this question.
VAOPGCPREC 6-96 (Aug. 16, 1996).
II. Effective Date
The veteran is seeking an effective date earlier than July
26, 2000 for the 20 percent rating for his service-connected
left ankle disability.
The effective date provisions for awards of increased
disability compensation include a general rule which is that
an award based on a claim for increase of compensation "shall
be fixed in accordance with the facts found, but shall not be
earlier than the date of receipt of application therefor."
38 U.S.C.A. § 5110(a) (West 2002). The corresponding VA
regulation expresses this rule as "date of receipt of claim
or date entitlement arose, whichever is later." 38 C.F.R.
§.400(o)(1) (2005). Under the general rule provided by the
law, an effective date for an increased rating may be
assigned later than the date of receipt of claim -- if the
evidence shows that the increase in disability actually
occurred after the claim was filed -- but never earlier than
the date of claim.
The law provides one exception to this general rule governing
claims "for increase" which exception governs awards "of
increased compensation." 38 U.S.C.A. § (a), (b)(2) (West
2002). If the evidence shows that the increase in disability
occurred prior to the date of receipt of claim, the RO may
assign the earliest date as of which it is ascertainable that
the increase occurred as long as the claim for the increased
disability rating was received within a year of the date that
the increase occurred. 38 U.S.C.A. § 5110(b)(2) (West 2002);
38 C.F.R. § 3.400(o)(2) (2005); see Harper v. Brown, 10 Vet.
App. 125 (1997); see also VAOPGCPREC 12-98.
In Harper v. Brown, 10 Vet. App. 125, 126-27 (1997), the
Court held that "38 U.S.C. § 5110(b)(2) and 38 C.F.R. §
3.400(o)(2) are applicable only where the increase precedes
the claim (provided that the claim is received within one
year after the increase)." Id. The Court further stated
that the phrase "otherwise, date of receipt of claim"
provides the applicable effective date when a factually
ascertainable increase occurred more than one year prior to
receipt of the claim for increased compensation. Id.; see
also VAOPGCPREC 12-98 at 2. That is, because neither 38
U.S.C. § 5110(b)(2) nor 38 C.F.R. § 3.400(o)(2) refer to the
date of the claim as the effective date of an award of
increased disability compensation, the effective date for
increased disability compensation is the date on which the
evidence establishes that a veteran's disability increased,
if the claim is received within one year from such date. The
effective date of an increased rating would be the date of
claim only if the claim is not received within the year
following the increase in disability, as explained in Harper.
VAOPGCPREC 12-98 at 3.
In addition, the Court has indicated that it is axiomatic
that the fact that must be found - in order for entitlement
to an increase in disability compensation to arise - is that
the service-connected disability has increased in severity to
a degree warranting an increase in compensation. See Hazan
v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under
section 5110(b)(2) which provides that the effective date of
an award of increased compensation shall be the earliest date
of which it is ascertainable that an increase in disability
had occurred, "the only cognizable 'increase' for this
purpose is one to the next disability level" provided by law
for the particular disability). Thus, determining whether an
effective date assigned for an increased rating is correct or
proper under the law requires (1) a determination of the date
of the receipt of the claim for the increased rating as well
as (2) a review of all the evidence of record to determine
when an increase in disability was "ascertainable." Hazan,
10 Vet. App. at 521.
The date of receipt of a claim is the date on which a claim,
information, or evidence is received by the VA. 38 C.F.R. §
3.1(r) (2005). "Claim" is defined broadly to include a
formal or informal communication in writing requesting a
determination of entitlement or evidencing a belief in
entitlement to a benefit. See 38 C.F.R. §.1(p); Brannon v.
West, 12 Vet. App. 32, 34-5 (1998). Any communication or
action indicating an intent to apply for a benefit under the
laws administered by the VA may be considered an informal
claim provided it identifies the benefit sought. See 38
C.F.R. § 3.155(a) (2005).
Under some circumstances, the date of outpatient or hospital
treatment or date of admission to VA or uniformed services
hospital will be accepted as the date of receipt of an
informal claim. 38 C.F.R. § 3.157(b)(1) (2005). The
regulations provide that VA treatment can be considered an
informal claim if it is, in pertinent part, a claim for
increased benefits.
The veteran's claim for increased compensation was received
on November 15, 1994. In October 2001, the RO increased the
veteran's service-connected left ankle disability from
noncompensable to 20 percent disabling, effective July 26,
2000, the date of correspondence by the veteran's
representative in which it was requested that VA examination
be conducted.
In his notice of disagreement, the veteran indicated that he
wanted the effective date of the 20 percent rating to be the
date of his claim, which he stated was filed in 1995. As
noted above, it was actually received on November 15, 1994.
In his VA Form 9, the veteran referenced the statement of the
case (SOC), wherein it was stated that an increased rating
prior to July 26, 2000 was not warranted because there is no
medical evidence showing marked limited motion prior to that
date. The veteran simply responded by referring to the grant
of service connection for his left ankle disability in 1985
(with a noncompensable evaluation). The veteran neither
points to a medical record prior to July 26, 2000 showing
marked limited motion of his left ankle nor alleges that he
filed an earlier claim for an increased rating.
The relevant medical evidence regarding the veteran's
service-connected left ankle was discussed in detail above is
herein incorporated by reference. The evidence fails to show
marked limited motion of the left ankle prior to July 26,
2000. To the extent that it shows moderate limited motion of
the left ankle prior to July 26, 2000, this is addressed
supra.
Therefore, the preponderance of the evidence is against the
assignment of an effective date earlier than July 26, 2000,
for a 20 percent rating for the veteran's service-connected
left ankle disability, and this claim must be denied. The
evidence in this case is not so evenly balanced so as to
allow application of the benefit of the doubt rule as
required by law and VA regulations. 38 U.S.C.A. § 5107(b)
(West 2002); 38 C.F.R. § 3.102 (2005).
III. VCAA
There has been a significant change in the law with the
enactment of the Veterans Claims Assistance Act of 2000
(VCAA), codified as amended at 38 U.S.C. §§ 5102, 5103,
5103A, and 5107. This law eliminates the concept of a well-
grounded claim and redefines the obligations of VA with
respect to the duty to provide notice and assistance.
The VCAA is applicable to all claims filed on or after the
date of enactment, November 9, 2000, or filed before the date
of enactment and not yet final as of that date. Pub. L. No.
106-475, § 7(a), 114 Stat. 2096, 2099 (2000); 38 U.S.C.A. §
5107 note (Effective and Applicability Provisions) (West
2002). Regulations implementing the VCAA were adopted. See
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).
VA has a duty to notify the appellant and his representative
of any information and evidence needed to substantiate and
complete a claim. 38 U.S.C.A. §§ 5102 and 5103 (West 2002);
38 C.F.R. § 3.159(b). Here, the April 2005 supplemental
statement of the case (SSOC) listed 38 C.F.R. § 3.400 (as did
the July 2002 SOC). The April 2005 SSOC also listed
38 C.F.R. § 4.124a, DC 8045 and 38 C.F.R. § 4.71a, DC 5271.
The Court of Appeals for Veterans Claims (Court) has
emphasized that the provisions of the VCAA impose new notice
requirements on the part of VA. See Quartuccio v. Principi,
16 Vet. App. 183 (2002). Specifically, VA has a duty to
notify a claimant (and his representative) of any
information, whether medical or lay evidence or otherwise,
not previously provided to VA that is necessary to
substantiate a claim. 38 U.S.C.A. § 5103 (West 2002). As
part of that notice, VA shall indicate which portion of that
information and evidence, if any, is to be provided by the
claimant and which portion, if any, VA will attempt to obtain
on behalf of the claimant. Id.
Here, an April 2004 letter informed the veteran that that
VA's duty to assist included developing for all relevant
records from any federal agency (to include military records,
VA medical records, or Social Security Administration
records), and making reasonable efforts to get relevant
records not held by a federal agency (to include from state
or local governments, private doctors and hospitals, or
current or former employers). The letter also informed the
veteran that VA would provide a medical examination or obtain
a medical opinion if it was determined that such was
necessary to decide his claim.
In addition, the April 2005 (SSOC) reiterated the above-
described duties, stating that provided certain criteria were
met, VA would make reasonable efforts to help him to obtain
relevant records necessary to substantiate his claims, to
include developing for all relevant records not in the
custody of a Federal department or agency, see 38 C.F.R.
§ 3.159(c)(1) (2005), to include records from State or local
governmental sources, private medical care providers, current
or former employers, and other non-Federal government
sources. He was further advised that VA would make efforts
to obtain records in the custody of a Federal department or
agency. See 38 C.F.R. § 3.159(c)(2) (2005). Finally, he was
notified that VA would obtain his service medical records and
other relevant records pertaining to his active duty that are
held or maintained by a governmental entity, records of
relevant medical treatment or examination at VA health care
facilities or at the expense of VA, and any other relevant
records held by any Federal department or agency which he
adequately identifies and authorizes VA to obtain. See 38
C.F.R. § 3.159(c)(3) (2005). Given the foregoing, the Board
finds that VA has complied with its duty to notify the
appellant of the duties to obtain evidence. See Quartuccio
v. Principi, 16 Vet. App. 183 (2002).
The Court's decision in Pelegrini v. Principi, 18 Vet. App.
112 (2004) held, in part, that a VCAA notice consistent with
38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1)
inform the claimant about the information and evidence not of
record that is necessary to substantiate the claim; (2)
inform the claimant about the information and evidence that
VA will seek to provide; (3) inform the claimant about the
information and evidence the claimant is expected to provide;
and (4) request or tell the claimant to provide any evidence
in the claimant's possession that pertains to the claim, or
something to the effect that the claimant should "give us
everything you've got pertaining to your claim(s)." This
new "fourth element" of the notice requirement comes from
the language of 38 C.F.R. § 3.159(b)(1).
Here, the April 2004 VCAA notice letter sent to the veteran
specifically requested that the veteran provide VA with any
evidence or information that he had pertaining to his appeal.
Moreover, the Board finds that the appellant was otherwise
fully notified of the need to give to VA any evidence
pertaining to his claim. For instance, the April 2005 SSOC
included the language of 38 C.F.R. § 3.159(b)(1), from which
the Court obtained the fourth notice element. Thus, the VCAA
notice letter, combined with the April 2005 SSOC, clearly
comply with the section 5103 content requirements, to include
38 C.F.R. § 3.159(b)(1).
The Board is mindful that, in concluding that the VCAA notice
requirements have been satisfied, it has relied on
communications other than the RO's VCAA notice letters to the
appellant. However, at bottom, what the VCAA seeks to
achieve is to give the appellant notice of the elements
outlined above. Once that has been done- whether it has been
done by way of a single notice letter, or via more than one
communication-the essential purposes of the VCAA have been
satisfied. Here, the Board finds that, because each of the
four content requirements of a VCAA notice has been met, any
error in not providing a single notice to the appellant
covering all content requirements was harmless. See, e.g.,
38 C.F.R. § 20.1102 (2004); Mayfield v. Nicholson, 19 Vet.
App. 103 (2005).
The Court in Pelegrini also held, in part, that a VCAA
notice, as required by 38 U.S.C. § 5103(a), must be provided
to a claimant before the initial unfavorable agency of
original jurisdiction (AOJ) decision on a claim for VA
benefits. Also, in the recent case of Dingess v. Nicholson,
Nos. 01-1917 &02-1506 (U.S. Vet. App. March 3, 2006) the
Court held that notice must be given in the initial letter
about the requirements for effective dates and disability
ratings. In this case, the initial AOJ decision was made
prior to the enactment of the VCAA. However, the Board finds
that any defect with respect to the VCAA notice requirement
in this case was harmless error.
As discussed above, the appellant has been provided "a
meaningful opportunity to participate effectively in the
processing of [his] claim by VA." Mayfield, 19 Vet. App. at
128. Therefore, "[t]he timing-of-notice error was thus
nonprejudicial in this case." Mayfield, 19 Vet. App. at
128, (holding that section 5103(a) notice provided after
initial RO decision can "essentially cure[] the error in the
timing of notice" so as to "afford[] a claimant a
meaningful opportunity to participate effectively in the
processing of ... claim by VA") (citing Pelegrini, 18 Vet.
App. at 122-24). In light of the content-complying notice
that the RO provided prior to sending the case to the Board
for de novo review, the appellant was not prejudiced by the
delay in providing content-complying notice, because, under
these circumstance, "the error did not affect the essential
fairness of the adjudication", Mayfield, supra (holding
timing-of-notice error nonprejudicial where fairness of
adjudication was unaffected because appellant was able to
participate effectively in processing of claim).
Therefore, in the circumstances of this case, a remand would
serve no useful purpose. See Soyini v. Derwinski, 1 Vet.
App. 540, 546 (1991) (strict adherence to requirements in the
law does not dictate an unquestioning, blind adherence in the
face of overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided). VA has satisfied its duties to
notify and to assist the appellant in this case. Further
development and further expending of VA's resources is not
warranted.
ORDER
An increased rating for residuals of a head injury with
headaches and memory loss is denied.
A 10 percent rating, and no higher, for residuals, left ankle
fracture, for the period November 15, 1994 through July 25,
2000, is granted subject to the regulations governing the
award of monetary benefits.
A rating in excess of 20 percent for residuals, left ankle
fracture, for the period beginning July 26, 2000, is denied.
An effective date earlier than July 26, 2000 for the
assignment of a 20 percent rating for the veteran's service-
connected residuals, left ankle fracture, is denied.
REMAND
The Board initially notes that 38 C.F.R. §§ 4.85 and 4.86
were amended effective June 10, 1999. In this regard, it is
noted that the April 2005 SSOC provided the current versions
of 38 C.F.R. §§ 4.85 and 4.86. However, the Board notes that
the most recent VA audiological examination was conducted in
August 2000. Therefore, the Board has determined that the
veteran should be afforded a VA audiological examination in
order to assess the current severity of his service-connected
left ear hearing loss.
Accordingly, the case is REMANDED for the following actions:
1. Schedule the veteran for a VA
audiological examination in order to
ascertain the current nature and severity
of his service-connected left ear hearing
loss. All indicated tests should be
conducted including puretone testing and
word recognition testing using the
Maryland CNC word list. Pertinent
findings should be reported in detail.
The claims folder must be provided to and
reviewed by the doctor in conjunction
with the examination, and the examination
report should note that such has been
accomplished.
2. Readjudicate the claim of entitlement
to an increased (compensable) rating for
left ear hearing loss. Thereafter, if
the claim on appeal remains denied, the
veteran and his representative should be
provided a supplemental statement of the
case (SSOC). The SSOC must contain
notice of all relevant actions taken on
the claim for benefits, to include a
summary of the evidence and discussion of
all pertinent regulations. An
appropriate period of time should be
allowed for response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
____________________________________________
C.W. SYMANSKI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs